Approved Fence causing issues

Started by JohnW26 • 8 replies • 2712 views

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JohnW26 (Florida)
Posts: 2

Posted:

Hello All

Need some advice please, three plus years ago we had an issue on our community where people visiting the area were feeding gators and other wildlife, my home and about 3 other homes backed onto this retention pond where the violations where happening and as a result Gators would come out of the water soon as you went into the yard looking for food (I have video evidence of this). These violators used to walk between homes and basically trespass to access the pond.

As a result I asked our HOA board at the time if we could extend our 4ft fence down about 40ft into common ground to stop the violators from feeding them.

The ARB board approved unanimously (5 members) to allow the fence upto the waters edge.

Then I receive a letter from our board of directors who said because of the circumstances they all approve it too (all three members).

The fence has been up for three plus years now and cost me a lot to make look nice, I hear a couple of complaints every now and again but otherwise its been peaceful. The pond wasn't used often apart from people feeding the local wildlife.

Anyway a few months ago we have had a chance in board who have a different view to old board who want to remove all fences by the pond and claim the HOA made a mistake.

Can someone please tell me how we stand on this? I just want to protect my family as the gators are big and come and go all the time through the woods so removing them won't help. I feel I have done nothing wrong as all I did was ask and get approved and installed the fence.

Anyone any ideas?

Thank you

John

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi John:

Welcome to HOAtalk.

If the fence was approved and you have it in writing then potentially they should not now make you remove, as long as it does not violate any local/state ordinances. However, there is the issue per your statements that the fence is on HOA property which you do not own yourself. Therefore, legally they could potentially remove the fence from the HOA property following proper procedures and vote.

Here is where it can get sticky in that because they approved the fence and you incurred costs for the approved fence, if they remove the fence should they potentially need to reimburse you for the cost of installing? That question would maybe be one to ask an attorney, if needed, but you might ask the current board and see what response you receive. If they consider this potential problem they may reconsider their stance on the supposed HOA mistake for which the HOA could be liable.

JanetB2 (Colorado)
Posts: 4,219

Posted:

I just also wanted to add that while I understand your problem, this is also an example of why an HOA should not allow an individual homeowner to “expand” onto HOA property. The property within your fenced area actually belongs to all homeowners and should not have been fenced off initially. I actually agree with the current board that the fence should be removed.

JohnW26 (Florida)
Posts: 2

Posted:

Thank you Janet for your answer and honest opnion. Let me ask you this, if someone was attacked or injured on said common property would the HOA be liable for this?

Many Thanks

John

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi John:

I am not an attorney and items of that nature could depend on certain circumstances. You have the issue in FL where there are gators, everyone chooses to live in said area with the wildlife. What you are asking would be similar to potentially someone in my state being attacked by a mountain lion. We all would need to ask ourselves is an HOA really responsible for wildlife? If a gator came into a city part would the city be responsible if someone was attacked? This would be something that maybe you could check case law in your state and see if there has been any liability found, if any such cases have been filed.

A suggestion would be to get with the local wildlife enforcement division and see what they state as to how best to handle the situation. It may be that they could come in and remove any rogue wildlife from the area that is becoming dangerous.

JanetB2 (Colorado)
Posts: 4,219

Posted:

John …

Also, I want you to understand potentially why this may have become an issue after the period of time. Sometimes it can help to understand the potential reasons. Here is a possible scenario:

Another homeowner casually mentions something to a board member that you have fenced off common HOA property which in essence they also legally own a percentage of and yet are not allowed to utilize. Maybe they pose a question similar to … since I am not allowed to access that property do I have to pay assessments to maintain or can I sue the HOA for being denied access. The board member mentions the conversation to other board members and they then review the situation. They determine that oops the previous board should not have allowed this situation and if someone does sue the HOA we could be in trouble.

This is why I agree with the current board as the situation is like a can of worms just waiting to be opened. The two potential fair solutions I can think of would be:

1) If the property is not being utilized and if allowed by your documents and State statutes, you could offer to purchase the property. At that time it would then be legally owned by yourself and the fence would remain surrounding the property.

2) Because they made a mistake another potential fair solution would be to take the cost of installing the fence, determine how much for each linear foot, then remove the side portions extending onto HOA property. Bring the back fence to the actual back of your property line. You will then still have a fence around your actual property to protect said property and family. The HOA potentially should reimburse you for the cost of the side portions being removed per linear foot and pay for any costs for making this change.

LauraL5 (Illinois)
Posts: 5

Posted:

Hi John,
sorry about your dilema but being on a board and having fence issues galor, I agree with the board, but becuase you had approval prior, they should be liable for your expenses. You were given approval. Let the association worry about gators and cary the liability. Your HOA pays insurance or should. Get your money back and dont forget your gardening expenses too. Whats fair is fair.

DonnaS (Tennessee)
Posts: 5,671

Posted:

John,
Under most circumstances, the HOA would be liable if someone were hurt due to negligence by the HOA to protect them on common property. EXCEPT by alliagtors. Gators are wildlife, can come up thru most anything and will eat cha if you get too close when feeding them. Now the kicker is "IT IS ILLEGAL TO FEED THEM!!! What kind of stoops feed alligators?

CharlesB17
Posts: 112

Posted:

I agree with the position that the fence is on common area. You ask how can you protect your family. Tha answer is carry a gun, lol. Jking :-D
On a serious note, fence the back of your property line to a reasonable height that will not interfere with you view of the pond's sceneary but yet prohibit alligators from coming into your back yard.
Since the HOA ARB approved this change, you should be entitled to reembursement for the cost you incurred for putting the fence up, and as a result of said payment, you could place a 3 or 4 foot fence across your property line to protect your family, friends and pets from rogue wildlife andering from the pond.
Also, if you notify your local wildlife and game commision that people are feeding the alligators, they will come out and catch them doing so and that my friend is a jailable offense in the state of Florida.
Did I mention I am a self managed HOA advocate?
Down with CAMs.
My2cents - 'nuff said
Good day and GOD Bless
Don't forget to pray for our troops!

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